When most people propose changes in our electoral system, they generally do so in order to achieve a political end, not because the change conforms to a platonic ideal of what elections should be like. So it is with the plaintiffs in Evenwel v. Abbott, No. 14-940, which the Supreme Court will hear this fall. Their claim is that, when states draw their legislative districts, the Equal Protection Clause requires that they use the numbers of voters, instead of the number of people, as the basis for allocating seats within the states.

The Supreme Court has ended the most blatant forms of gerrymandering and required legislative districts at both the state and federal level to be equal in composition within each state. The Court's rulings have been labeled "one person, one-vote," and the general assumption has been that, in dividing up each house by districts, the denominator has been the total population of the state.

Evenwel challenges that assumption and argues that, because the goal of one person, one vote is to have each person's vote count the same as every other person's, the denominator should be total voters and not total population. If this were the law, the main groups that would no longer be counted are children, illegal immigrants, those not registered to vote, and felons who are precluded from voting. Until the actual lines are drawn for all the districts in a state, the results are not certain. But we do know that the backer of this lawsuit (Edward Blum) also supports Fisher v. University of Texas, which seeks the elimination of affirmative action in university admission. Therefore, it is reasonable to assume that he believes that the change would have an adverse impact on minorities and their Democratic supporters, or at least it has that potential in some states, including Texas where the case was brought.

Yesterday, the United States Supreme Court issued a 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, which preserved a vital weapon against partisan gerrymandering, a practice which artificially keeps the dominant political party in power regardless of popular will. The Court held that the Elections Clause of the Constitution, as well as a federal statute (2 U.S.C. § 2a(c)), permit the people of Arizona to use the initiative process to take the congressional redistricting process largely out of the hands of state legislators (those who benefit directly from the redistricting process), and to entrust that important process to an independent body.

As has been widely reported, the congressional redistricting process in many places has devolved into an anti-democratic procedure where politicians essentially decide who they want their voters to be. Using demographic models and projections of voting patterns calculated down to the neighborhood-level, districts can be drawn in such a way (often into odd-looking shapes) so as to virtually guarantee an electoral outcome. Both parties are guilty of this. Thus, for instance, in 2012, in states where Democrats controlled the process, their candidates won about 56 percent of the vote and 71 percent of the seats. In states where Republicans controlled the process, their candidates won roughly 53 percent of the vote but 72 percent of the seats. As one politician has put it, “We are in the business of rigging elections.”

Though courts have long recognized the anti-democratic nature of partisan gerrymandering, they have thus far been reluctant or unable to stop it. So in states like Arizona and California, the people themselves have taken action. Voter-passed initiatives in both states have put redistricting into the hands of independent commissions, which are required to adhere to neutral redistricting principles such as ensuring compactness and contiguity. Though imperfect, independent commissions have been an important weapon in the fight against partisan gerrymandering.